Citation Nr: 1300520
Decision Date: 01/07/13 Archive Date: 01/11/13
DOCKET NO. 06-23 002 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, Wyoming
THE ISSUES
1. Entitlement to service connection for diabetes mellitus type II, including as due to herbicide exposure.
2. Entitlement to service connection for hypertension, including as secondary to diabetes mellitus and herbicide exposure.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
H.J. Baucom, Associate Counsel
INTRODUCTION
The Veteran had active service in the U.S. Air Force from August 1967 to August 1971 .
This matter comes to the Board of Veterans Appeals (Board) from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming which denied the above claims.
In July 2010 and September 2011 the Board remanded the claims for additional development which has been completed.
FINDINGS OF FACT
1. Personnel records show that the Veteran served in the U.S. Air Force during the Vietnam War in Guam, but do not show any in-country service in the Republic of Vietnam.
2. Diabetes mellitus was not first manifest during service, or within a year after discharge from service, and the medical evidence of record does not show that the Veteran's diabetes mellitus is related to any disease or injury incurred in or aggravated by service
3. Hypertension was not first manifest during service and the medical evidence of record does not show that the Veteran's diabetes mellitus is related to any disease or injury incurred in or aggravated by service.
CONCLUSIONS OF LAW
1. The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159 , 3.102, 3.303, 3.307, 3.309 (2012).
2. The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Notice and Assistance
VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Notice in this case was provided in June 2004 and March 2006 letters. The claims were subsequently readjudicated in a November 2012 supplemental statement of the case. Mayfield, 444 F.3d at 1333.
The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran contends that there are additional classified documents which exist and are not part of the claims file but there is no indication that these document in fact exist, or are available.
The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2).
A VA examination was conducted in July 2010 for hypertension; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examination was adequate as the examiner reviewed the record, evaluated the Veteran and provided an opinion with supporting rationale as to the cause of the Veteran's current disabilities.
The Veteran was not examined by VA in conjunction with the claim of service connection for diabetes mellitus; however, no such examination is necessary in this case because the evidence of record does not indicate that the disability or symptoms of the disability "may be" associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006).
There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).
Analysis
Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).
Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Diabetes mellitus is a listed chronic disease for purposes of application of that presumption . 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). However as there is no evidence of diabetes mellitus within one year of exit from service, in August 1971, service connection on a presumptive basis is not warranted.
A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a).
To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997).
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.
There is no evidence, nor does the Veteran contend, that he developed diabetes mellitus or hypertension during service. The service treatment records contain no treatment or complaints for diabetes mellitus or hypertension, or symptoms thereof.
A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and has a disease listed at § 3.309(e) (including Type 2 Diabetes mellitus) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 'Service in the Republic of Vietnam' includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6) , 3.313(a).
The Veteran contends that his service involved visitation in the Republic of Vietnam. The Veteran was stationed at Anderson Air Force Base (AFB) in Guam during the Vietnam War and he contends that while stationed in Guam he was sent to Vietnam on flight missions, landing at Vung Toa Air Base and Tan Son Nhut Air Base. The Veteran also contends that he participated on flights to Vietnam to rescue and recover downed pilots and crew members and to salvage parts from downed airplanes.
Personnel records show the Veteran was assigned to the 79th Aerospace Rescue and Recovery Squadron from May 1968 to November 1969 at Anderson AFB. A January 2011 memorandum from the U.S. Army and Joint Services Records Research Center (JSRRC) found that the Veteran's allegations that he was present in Vietnam in 1968 or 1969 were uncorroborated as there was no evidence showing that he was in Vietnam. The Veteran's detailed contentions, to include the names of fellow servicemen who accompanied him, were sent to the Air Force Historical Research Agency (AFHRA) which reported that there were no trips to Vietnam noted in the official histories of the 79th Aerospace Rescue and Recovery Squadron. The histories have in depth details for all of the missions conducted, including the names and positions of the individuals that accompany the aircraft on the various missions. The histories identify some flights to Okinawa but none to Vietnam. There is no record of the Veteran, or anyone from the 79th Aerospace Rescue and Recovery Squadron, conducting a mission to Vietnam.
A buddy statement from MRD stated that he was in the USAF with the Veteran in 1969/1970 and was aware of the Veteran going to Vietnam with an engine change out crew in 1969. No additional information was provided for MRD, such as service number, full name, branch of service, and date of birth, and the RO was unable to identify MRD as a veteran, or whether he served with the Veteran. In addition, MRD's statement is that he was aware that the Veteran went to Vietnam, not that he accompanied the Veteran to Vietnam. MRD's statement has no probative value as it is from an unverified source, and MRD is not competent to state that the Veteran was in Vietnam as it is not something he observed.
Unfortunately there is no evidence that the Veteran had service in the Republic of Vietnam. Therefore there is no presumption that he was exposed to herbicides in service.
The Veteran also contends that he was exposed to Agent Orange and dioxin while stationed at Anderson AFB in Guam. The Board notes that Anderson AFB was placed on the Environmental Protection Agency (EPA) National Priorities List (NPL) on October 14, 1992 and that dioxins were found on the base. Further development was conducted to attempt to verify the Veteran's alleged Agent Orange exposure in Guam. In March 2012 the JSRRC found that after researching the available historical information there is no documentation of spraying, testing, transporting, storage or usage of Agent Orange or tactical herbicides at Anderson AFB, Guam. Although the Veteran was stationed at Anderson AFB from 1968-1969, and in 1994 Anderson AFB was found to have dioxins on the base, this does not establish that the Veteran was exposed to herbicides in service.
The Veteran does not have service in Vietnam or any other location where exposure to herbicide is presumed. There is no evidence that the Veteran was exposed to herbicides in service. As such there is no basis for presumptive service connection based on herbicide exposure. Service connection can still be established on a direct basis. The Veteran does not contend, nor do the service treatment records show any treatment for or complaints of diabetes mellitus symptoms during service or of any continuity of symptomatology for diabetes mellitus from the time of discharge in 1976 until 2005. Furthermore there is no medical evidence relating the Veteran's current diabetes mellitus to any incident or disease in service.
The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for diabetes mellitus is not warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
The Veteran contends that he has hypertension due to herbicide exposure, however there is no evidence of herbicide exposure in service, as discussed above. Further, hypertension is not a disease subject to presumptive service connection based on such exposure. See 38 C.F.R. § 3.309(e). The Veteran contends that his hypertension is secondary to diabetes mellitus, however the diabetes is not related to service, as discussed above. As there is no predicate disability upon which secondary service connection may be granted, this argument does not provide a basis for the grant of service connection. Additionally the Veteran does not contend, nor do the service treatment records show any treatment for or complaints of hypertension symptoms during service or of any continuity of symptomatology for hypertension from the time of discharge in 1971 until onset in 1998. The July 2010 VA examiner concluded that the Veteran's hypertension was not related to service because it was not diagnosed until many years after service and the Veteran reported no blood pressure problems while in service. There is no competent evidence linking the Veteran's hypertension to service.
The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for hypertension is not warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
ORDER
Service connection for diabetes mellitus type II, including as due to herbicide exposure, is denied.
Service connection for hypertension, including as secondary to diabetes mellitus and herbicide exposure, is denied.
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M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs